Citation Nr: 9836831
Decision Date: 12/17/98 Archive Date: 12/30/98
DOCKET NO. 94-27 837 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to an increased rating for right hip bursitis,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from February 1953 to
February 1973.
The Department of Veterans Affairs (VA) Regional Office (RO)
denied the benefits sought in February 1994, and the veteran
appealed. The Board of Veterans' Appeals (Board) remanded
the case to the RO in July 1997 for further development and
readjudication of the issue listed above. A VA examination
of the veteran was completed in May 1998, and the RO issued a
Supplemental Statement of the Case in June 1998 which
continued to deny the veteran’s claim. The veteran’s claims
folder was returned to the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that an increased rating is warranted
for his service-connected right hip trochanteric bursitis
because when he awakens, he has difficulty moving due to
bursitis. He feels better after about an hour, but it still
hurts. He maintains that he can not function under the
ordinary conditions of daily life or employment.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
two-volume claims file. Based on its review of the relevant
evidence in this matter, and for the following reasons and
bases, it is the decision of the Board that the preponderance
of the evidence is against the claim for an increased rating
for right hip bursitis. The benefit sought on appeal is
accordingly denied.
FINDING OF FACT
On recent medical examination, the veteran is shown to have
80 to 95 degrees of thigh flexion, and 30 to 45 degrees of
thigh abduction. His hip extension is to 5 degrees. Pain,
including on use or due to flare-ups, does not cause
significant additional impairment of right hip function.
CONCLUSION OF LAW
The schedular criteria for an evaluation in excess of 10
percent for right hip bursitis are not met. 38 U.S.C.A. §§
1155, 5107 (West 1991); 38 C.F.R. §§ 4.71, 4.71a, Diagnostic
Codes 5019, 5251, 5252, 5253 (1998).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board notes that, in general, an allegation of increased
disability is sufficient to establish as well-grounded a
claim seeking an increased rating. Proscelle v. Derwinski, 2
Vet. App. 629 (1992). The Board is also satisfied that all
relevant facts have now been properly developed with respect
to the disability at issue and that no further assistance to
the veteran is required in order to comply with the VA's duty
to assist mandated by 38 U.S.C.A. § 5107(a).
Factual Background
The veteran filed his current increased rating claim in
September 1993. Records from that time were thereafter
submitted which did not show treatment for the disability at
issue in particular. They did show lower extremity clinical
findings, however. Namely, the veteran's lower extremity
muscle strength was noted to be intact and equal bilaterally,
his motor examination was noted to be normal, and he was
noted to have good muscle strength. In April 1994, in
conjunction with a cardiopulmonary assessment, he reported
that in light of cardiopulmonary problems, he could walk a
mile or so if he walked slowly.
On VA orthopedic examination in October 1994, the veteran
reported that he was employed as a heavy equipment operator.
He stated that his discomfort was primarily in the area of
the right trochanter and just posterior to it. Clinically,
the veteran's right hip exhibited no point tenderness. He
could externally rotate it from zero to 40 degrees,
internally rotate it from zero to 10 degrees, flex it from
zero to 80 degrees, and abduct it from zero to 30 degrees.
The diagnosis was a long history of right trochanteric
bursitis. X-rays revealed no osseous or joint abnormalities.
Soft tissue ossification was seen in the right proximal
thigh.
On VA orthopedic examination in May 1998, in response to the
Board’s remand, the veteran complained of right hip pain upon
arising in the morning. Sometimes he could not tell if it
was his right hip, right knee, or low back that was causing
the problem. He reported problems sleeping on his right
side. He denied having any flare of pain to suggest
inflammatory arthritic processes, but reported that when the
pain was localized over his right hip, he was extremely
limited in his ability to function. He was not using any
assistive devices. He was currently retired from a civilian
occupation, following military retirement as a heavy
equipment operator.
Clinically, the veteran had a slightly antalgic gait with a
Trendelenburg gait pattern in the right hip. He had pain
along the posterior aspect of the right greater trochanter.
Range of motion of his right hip showed five degrees of
extension, 95 degrees of flexion, 45 degrees of abduction, 35
degrees of adduction, 15 degrees of internal rotation, and 35
degrees of external rotation. This compared with his left
hip and was equivalent to the left hip range of motion.
Push-pull testing of the right hip joint caused mild increase
in pain. X-rays of the right hip demonstrated evidence of
chronic trochanteric bursitis with small rounded ossicles
over the greater trochanter. This was consistent with a
probable avulsive type of injury to the hip abductors or to
the vastus lateralus insertion onto the base of the greater
trochanter. Mild degenerative changes in the right hip were
also noted. The diagnoses were right hip trochanteric
bursitis and mild degenerative arthritis. The orthopedist
commented that the veteran's morbid obesity was contributing
to his current complaints. The orthopedist reported that the
bursitis was clearly documented in the records, however, and
felt that the bursitis caused a mild to moderate effect on
overall hip function. Back and knee problems were also felt
to contribute to right hip discomfort, and the onset of
degenerative arthritis in the right hip was also exacerbating
the problems related to the trochanteric bursitis.
The veteran has not submitted any evidence which indicates
that he is currently receiving medical treatment for bursitis
of the right hip. He was given the opportunity to do so,
pursuant to the Board’s July 1997 remand, in a September 1997
letter from the RO.
Relevant Law and Regulations
Disability ratings are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic
codes identify the various disabilities. 38 C.F.R. Part 4.
Bursitis is rated based upon limitation of motion of the part
affected. 38 C.F.R. 4.71a, Diagnostic Code 5019. Normal hip
ranges of motion include flexion to 125 degrees and abduction
to 45 degrees. 38 C.F.R. § 4.71, Plate II (1998).
If a hip disability produces or nearly approximates thigh
extension limited to 5 degrees; thigh flexion limited to 45
degrees; thigh adduction limited so that the legs can not be
crossed; or limited rotation so that toe-out can not be
accomplished to more than 15 degrees; a 10 percent rating is
warranted. If a hip disability produces or nearly
approximates thigh flexion limited to 30 degrees; or thigh
abduction limited to 10 degrees; a 20 percent rating is
warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252
and 5253.
The Court has decided as a matter of law in this case that 38
C.F.R. §§ 4.40 and 4.45 are not subsumed in the Diagnostic
Codes for rating right hip bursitis based upon limitation of
motion, and that 38 C.F.R. § 4.14 (anti-pyramiding) does not
forbid consideration of a higher rating based on a greater
limitation of motion due to pain on use or during flare-ups,
or due to weakened movement, excess fatigability, or
incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206-7
(1995). Accordingly, the Court’s holding in DeLuca requires
the Board to consider whether an increased rating for the
veteran’s right hip bursitis may be in order on three
independent bases: (1) pursuant to the schedular criteria
under the Diagnostic Codes for limitation of motion, i.e.,
notwithstanding the etiology or extent of his pain
complaints, if the medical examination test results reflect
that range of motion of his right hip is in fact limited in
degrees to an extent which would qualify him for an increased
rating under the limitation of motion rating codes; (2)
pursuant to 38 C.F.R. § 4.40 on the basis of additional
range-of-motion loss in his right hip due specifically to his
complaints of pain on use or during flare-ups; and (3)
pursuant to 38 C.F.R. § 4.45 if there is additional range-of-
motion loss in his right hip due specifically to any weakened
movement, excess fatigability, or incoordination.
It should also be noted that use of terminology such as
"mild" by VA examiners, although evidence to be considered by
the Board, is not dispositive of an issue. All evidence must
be evaluated in arriving at a decision regarding an increased
rating. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 4.2, 4.6 (1998).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court
of Veterans Appeals stated that “a veteran need only
demonstrate that there is an ‘approximate balance of positive
and negative evidence’ in order to prevail.” To deny a
claim on its merits, the evidence must preponderate against
the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
Analysis
As discussed above, the veteran’s right hip bursitis is rated
according to limitation of motion of the hip. 38 C.F.R.
§ 4.71a, Diagnostic Code 5019 (1998).
The ranges of motion in degrees which are shown for the
veteran's right hip on the recent medical examination do not
warrant a disability rating greater than 10 percent. The
disability does not produce or nearly approximate thigh
flexion limited to 30 degrees, or thigh abduction limited to
10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5252,
5253. The veteran is shown to have 80 to 95 degrees of thigh
flexion, and 30 to 45 degrees of thigh abduction. Range of
motion of the hip also showed five degrees of extension,
which calls for a 10 percent rating under 38 C.F.R. § 4.71a,
Diagnostic Code 5251.
In DeLuca, the Court directed the Board to provide adequate
reasons and bases addressing the degree or extent of
additional range-of-motion loss in the veteran’s right hip
due to pain on use or during flare-ups (38 C.F.R. § 4.40),
and, if clinically shown by the medical evidence, the degree
of additional range-of-motion loss in this joint due to
weakened movement, excess fatigability, or incoordination
(38 C.F.R. § 4.45).
The impairment present due to right hip pain, either combined
with the limitation of motion shown above, or alone, does not
provide a basis for a disability rating greater than 10
percent. The veteran’s strength and motor ability have
repeatedly been reported to be normal, there was no point
tenderness shown on VA orthopedic examination in October
1994, and there was only a mild increase in pain on
manipulation in May 1988. The VA orthopedist opined in May
1988 that the veteran's right hip pain had only a mild to
moderate effect on overall function, and the veteran's gait
was only slightly antalgic (an antalgic gait is one employed
to lessen pain). The veteran does not use a prosthesis to
assist with ambulation, and he apparently would be able to
walk more than a mile if it were not for cardiorespiratory
problems. Moreover, the Board notes that ranges of motion of
the veteran’s service-connected right hip are no worse that
for his non service- connected left hip. In short, the
medical record does not identify any of the additional
factors allowing for compensation under 38 C.F.R. §§ 4.40 and
4.45 in this case.
The Board is of course aware that the veteran attributes the
pain and other symptomatology he currently experiences to his
service-connected right hip bursitis.
However, the report of the May 1988 VA examination makes it
clear that numerous other non service-connected factors are
at work, to include obesity, back and knee disabilities, and
arthritis of the right hip.
The Board further notes that the veteran evidently does not
require medical treatment for his service-connected right hip
bursitis.
The benefit-of-the-doubt doctrine under 38 U.S.C.A. § 5107(b)
is not for application in this case as the evidence for and
against the claim clearly is not in relative equipoise but
instead preponderates against the claim. See Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1991), Williams (Willie) v.
Brown, 4 Vet. App. 270, 273-74 (1993), and Alemany v. Brown,
9 Vet. App. 518, 519 (1996). Accordingly, the Board
concludes that a disability rating in excess of 10 percent
for the service-connected right hip bursitis is not
warranted.
ORDER
Entitlement to an increased disability rating for right hip
bursitis is denied.
Barry F. Bohan
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -